The applicant, Mr Bahri Ceylan, is a Turkish
national who was born in 1962. He was represented before the Court by
Mr S. Çetinkaya, a lawyer practising in İzmir.

A. The circumstances of the case

The facts of the case, as submitted
by the applicant, may be summarised as follows.

On 18 February 1999 the applicant was arrested
and taken into custody by the Bursa police in connection with an investigation
into the activities of the PKK (Partiya Karkerên Kurdistan – Workers’ Party of Kurdistan).
He was transferred immediately to the premises of the Antalya security
police, the authority in charge of the investigation. He was questioned
until 23 February 1999, when he signed a statement and admitted carrying
out activities within the organisation in question.

On the same day the applicant was interviewed
by the Antalya public prosecutor and subsequently by a magistrate, partly
confirming on both occasions the statements he had made to the police.
The magistrate made an order for the applicant’s pre-trial detention.
He was accordingly transferred to Nazilli E-type Prison in the Aydın
district.

On 11 March 1999 the public prosecutor attached
to the İzmir National Security Court (“the public prosecutor”,
“the National Security Court”) charged the applicant and six others
with being a member of and assisting the PKK. He sought the application
of Articles 168 and 169 of the Criminal Code and section 5 of the Prevention
of Terrorism Act (Law no. 3713).

On 12 March 1999 the trial began in the National
Security Court in the case, registered as no. 1999/74. The first hearing
was devoted to purely procedural matters.

The second hearing was held on 22 April 1999
in the absence of the defendants – including the applicant – who
had informed the court in writing that they would not be appearing in
protest against the arrest of Mr A. Öcalan, the PKK leader. However,
the applicant’s counsel, Mr Çetinkaya, submitted that his client had
acted against his will out of solidarity with his fellow detainees.
The trial judges confined themselves to reading out the indictment and
checking that the lawyers present had been duly authorised.

At a hearing on 8 June 1999 in case no. 1999/74
the applicant and his counsel lodged defence pleadings which were read
out and added to the file. The judges then asked the defendants to comment
on the various statements taken during the preliminary investigation.
The applicant said that he confirmed only the statements he had made
in the context of his defence pleadings.

Having regard to all these considerations, the
judges decided to join the case in question to case no. 1998/284, which
was pending before the same bench.

Later that day the National Security Court resumed
its examination of the joined case no. 1998/284. The applicant again
appeared with his counsel.

At that hearing,1
in which a military judge took part, the National Security Court took
note of the joinder of case no. 1999/74 and of the contents of the file
in that case. The judges subsequently informed the new defendants of
all the procedural steps taken previously and read out the documents
in the file to the parties, including earlier statements by some of
the applicant’s fellow defendants implicating him.

The applicant and his counsel challenged all
the prosecution evidence in case no. 1999/74, including the statements
in question, and, as to the merits, submitted their written pleadings,
requesting the judges to endorse them. The pleadings were added to the
file. No other decisive steps were taken that day.

On 18 June 1999 Article 143 of the Constitution
was amended with the effect that military judges were barred from sitting
as members of national security courts. Further to the consequent amendments
made to the National Security Courts Act on 22 June 1999, the military
judge on the bench of the İzmir National Security Court was replaced
by a civilian judge.

The first hearing in which the new judge took
part was held on 29 July 1999 and was attended by the applicant and
his counsel. It began with the reading out of all the records of the
previous hearings. As Mr Çetinkaya stated that he had nothing to add
at that stage of the proceedings, no steps were taken in respect of
the applicant. The next hearing was scheduled for 21 September 1999.

On 14 December 1999 the National Security Court
found the applicant guilty of being a member of the PKK and sentenced
him to twelve years and six months’ imprisonment. It held that although
he had retracted all the statements which the police and the public
prosecutor had taken from him, the confessions resulting from his pleadings
filed on 8 June 1999 were sufficient to establish that he had indeed
been a member of the PKK.

The applicant appealed on points of law. In a
judgment of 27 November 2000 the Court of Cassation upheld the impugned
judgment.

B. Relevant domestic law and practice

Before 22 June 1999 section 5 of Law no. 2845
provided that one of the three judges sitting in national security courts
had to be a military judge (for the legislation in force at the time,
see Incal
v. Turkey, judgment of 9 June 1998, Reports of Judgments and Decisions 1998-IV, pp. 1557-60, §§ 26-29).

Following the entry into force of Law no. 4390
on the above-mentioned date, military judges were no longer allowed
to sit in the national security courts, which were eventually abolished
by Law no.5190 of 16 June 2004.

COMPLAINTS

The applicant complained, firstly, that he had
not had a fair hearing by an independent and impartial tribunal, on
account of the involvement of a military judge in part of his trial.

He further complained of the distressing circumstances
in which his transfers between Nazilli Prison and the İzmir National
Security Court had taken place. He alleged that as a result he had been
unable to defend himself adequately or to speak comfortably with his
lawyer.

The applicant alleged a violation of Article
6 §§ 1 and 3 (b) of the Convention.

THE LAW

1. The applicant alleged a violation of his right
to a fair hearing on account of the involvement of a military judge
in part of his trial in the İzmir National Security Court. He relied
on Article 6 § 1, the relevant parts of which provide:

“1. In the determination of ... any criminal
charge against him, everyone is entitled to a fair and public hearing
within a reasonable time by an independent and impartial tribunal ...”

The Court refers at the outset to the position
it recently confirmed in Öcalan v. Turkey ([GC], no. 46221/99, § 113, ECHR 2005-IV):

“It is understandable that the applicant –
prosecuted in a State Security Court for serious offences relating to
national security – should have been apprehensive about being tried
by a bench which included a regular army officer belonging to the military
legal service. On that account he could legitimately fear that the State
Security Court might allow itself to be unduly influenced by considerations
which had nothing to do with the nature of the case.”

Admittedly, the replacement of the military judge
by a civilian judge in the course of criminal proceedings cannot in
itself redress the institutional problem raised in the instant case
(compare İmrek v. Turkey (dec.), no. 57175/00, 28 January 2003); any
doubts as to the lawfulness of the proceedings as a whole must have
been sufficiently dispelled after the change in the bench (see Öcalan,
cited above, § 115).

The conclusion that may be drawn from Öcalan is that in any given case it is first appropriate to
examine the nature of the procedural steps in which the military judge
was involved, making a distinction between “preliminary” steps and
steps relating to “the merits”. It should then be ascertained whether
the steps relating to “the merits” were taken afresh after the military
judge had been replaced (ibid., §§ 37, 38 and 117).

An interpretation of these criteria in the light
of the relevant facts examined by the Grand Chamber in the Öcalan case would suggest that it is important to determine
the role which the steps in the second category may have played in the
exercise of the rights of the defence. It must be emphasised that in
the hearings complained of in that case the military judge had been
involved in important interlocutory decisions, such as the refusal of
applications by the defence for the communication of additional documents
and for further investigations (ibid., § 40) or the restriction of
the time and facilities available to the lawyers for preparing their
final submissions (ibid., § 41).

In the instant case, however, the military judge
of the İzmir National Security Court cannot be said to have been involved
in any decision of that kind. The most significant steps taken at the
two successive hearings on 8 June 1999 in which the military judge took
part – for the last time – consisted in joining the two cases and
reading out the statements by some of the applicant’s fellow defendants
and the indictment accompanying the file in the joined case no. 1999/74.
The applicant challenged the contents of those documents and filed defence
pleadings, but it should be noted that the pleadings were examined at
the hearings held after the civilian judge had been appointed.2

The Court considers that in the instant case
the nature of the procedural steps in which the military judge was involved
was not such as to require them to be taken afresh by the new bench
of the İzmir National Security Court.

It should be pointed out, however, that the new
bench held its first hearing on 29 July 1999, by which time neither
the applicant nor his counsel could have claimed to be unaware of the
Court’s leading judgments on the subject (see Incal, cited above, p. 1572, § 68, and Çıraklar v. Turkey, judgment of 28 October 1998, Reports 1998-VII, p. 3073, § 39). But at that hearing the
applicant and his counsel simply stated that they had nothing to add,
without even seeking to inform the judges of their alleged concerns
about the previous bench, whereas they are now claiming that the steps
taken by that bench vitiated the proceedings as a whole.

2. The applicant also complained of an infringement
of his defence rights under Article 6 § 3 (b) of the Convention, which
provides:

“3. Everyone charged with a criminal offence
has the following minimum rights:

...

(b) to have adequate time and facilities for the
preparation of his defence; ...”

Notwithstanding the fact that this complaint
does not seem ever to have been raised before the relevant authorities,
the Court observes that the applicant has been unable to establish in
what respect his transfers between Nazilli Prison and the İzmir National
Security Court actually hindered the preparation of his defence, especially
as he has not alleged that outside the times of such transfers he was
prevented from preparing his defence in the usual manner through meetings
and written correspondence.

There is no evidence to suggest that the authorities
in any way restricted the number, length or material conditions of the
applicant’s meetings with his lawyer or, for example, limited his
access to the case file (compare Öcalan, cited above, §§ 134-149, and the references cited
therein). Admittedly, the fact that Mr Çetinkaya was practising in
İzmir may have caused some problems. That, however, is a matter of
free choice between the applicant and his designated representative,
and the Government cannot be held responsible for it.

Accordingly, even supposing that no problem arises
under Article 35 § 1 of the Convention, the Court concludes that the
application must be rejected as being manifestly ill-founded pursuant
to Article 35 §§ 3 and 4.

For these reasons, the Court unanimously

Declares the application inadmissible.

1. This part of the sentence
and the three preceding paragraphs were rectified on 20 September 2005
following the discovery by the Court of an official document which the
applicant had omitted to produce.

1. This paragraph was partly
rectified on 20 September 2005 as a consequence of the corrections referred
to in the footnote on page 2 above.